Tribes, after ruling, reject deal with Oklahoma over jurisdiction

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The Choctaw tribe, one of the five affected by a landmark Supreme Court ruling, operates a casino and hotel in Durant, Oklahoma.

An agreement between Oklahoma and tribal governments fell apart a week after the U.S. Supreme Court ruled that half of the state remains tribal reservations.

The Muscogee (Creek) Nation pulled out of a deal with Oklahoma Attorney General Mike Hunter on Friday that was to outline proposed federal legislation to address the court’s ruling on tribal relations with state and local law enforcement and governmental regulation.

“The Muscogee (Creek) Nation will oppose any proposed legislation that diminishes the Nation’s sovereignty,” principal chief David Hill wrote in a letter to the tribe Friday.

“As the chief, I very much believe that collaboration between federal, state, and tribal governments is critical and necessary following the Supreme Court’s decision in McGirt,” Hill said, referring to the case known as McGirt v Oklahoma. “That collaboration, however, does not require congressional legislation.”

The Supreme Court’s 5-4 ruling July 9 that that the Muscogee (Creek) Nation reservation remained intact meant that, by extension the reservations of the Five Civilized Tribes, as they are identified under the law were also still in effect. Thus, about 43% of Oklahoma had the overlapping jurisdiction of state, federal and tribal governments. That includes most of the city of Tulsa.

The ruling did not change ownership of property — it specifically removes crimes involving Native Americans from state jurisdiction — but it raises questions about whether regulatory and land use provisions will also be affected.

The Muscogee (Creek), Seminole, Cherokee, Chickasaw and Choctaw Nations make up the five tribes. Seminole Nation Chief Greg P. Chilcoat also said his tribe won't go along with the agreement.

Under the agreement with Hunter announced Thursday, the state would have criminal jurisdiction over non-Native American offenders throughout the treaty territories, with some exceptions, while the tribes would have overlapping jurisdiction over most offenders who are tribal citizens. Federal prosecutors would still have jurisdiction under the Major Crimes Act over certain serious crimes committed by Native Americans.

The agreement clarified that civil jurisdiction would remain largely unchanged. But Hill’s letter came the day after the agreement was announced.

Hunter called the tribes withdrawal “a stunning and regrettable reversal of commitments and assurances to me.

“Legislation is necessary to clarify the criminal and civil uncertainty created by the McGirt decision,” Hunter said. “I am deeply disappointed in Chief Hill for withdrawing from this process. It is my hope that both the Muscogee (Creek) Nation and the Seminole Nation will recommit to our agreement on legislation that preserves public safety and promotes continued economic growth.”

In a report the day the agreement was announced Fitch Ratings noted that McGirt “presents the state with a score of jurisdictional issues that will take time to address.

“However, Fitch Ratings expects the generally cooperative relationship between the nations and the state will help clarify sovereignty issues raised by the ruling and provide for an agreement that limits the long-term credit implications to the state,” analyst Marcy Block wrote. On Monday, Block said Fitch still believes agreements will be worked out, despite the tribes’ announcements.

In the short term, the McGirt ruling primarily affects criminal prosecution under the federal Major Crimes Act. An estimated 1,700 tribal inmates tried under state law and currently serving out their sentences may choose to seek a new trial in federal court.

The long-term implications may range much wider.

“Fitch believes the ruling creates ambiguity around the regulatory and civil powers of the state and its municipal governments, including excise, property and income taxation of up to 200,000 tribal members if they reside within the newly affirmed reservation boundaries,” Block wrote. “The Court has repeatedly ruled against state or local government taxation of income earned by tribal members on a reservation, land owned by tribal nations and the enrolled tribe members that live on such lands, absent U.S. Congressional action authorizing it.”

Oklahoma, rated AA with a stable outlook by Fitch, has dealt with dual sovereignty and Native American nations since statehood in 1907.

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